Dunstan et al v. comScore, Inc.

Filing 124

MEMORANDUM by comScore, Inc. in Opposition to motion to dismiss 122 Count IV of the Complaint (Stack, Paul)

In the United States District Court
for the Northern District of Illinois
Eastern Division
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
Situated individuals,
Plaintiffs,
v.
COMSCORE, INC., a Delaware corporation,
Defendant.

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No. 11 C 5807
Judge James F. Holderman
Magistrate Judge Kim

MEMORANDUM IN OPPOSITION TO
PLAINTIFF JEFF DUNSTAN'S MOTION TO
VOLUNTARILY DISMISS COUNT IV OF THE COMPLAINT
Defendant comScore, Inc. ("comScore") respectfully submits this Memorandum of
Law in Opposition to Plaintiff Jeff Dunstan's Motion to Voluntarily Dismiss Count IV of
the Complaint. Defendant states as follows:
I.

Introduction
Plaintiff Jeff Dunstan alleged and realleged in numerous paragraphs in the complaint

that the comScore program downloaded onto his computer caused his computer to become
"entirely debilitated," forcing him to purchase a $40 anti-virus software program to get rid of
it. comScore's program does not cause the problem of which Dunstan complains. As a
consequence, comScore believes that it is likely Dunstan inadvertently downloaded a virus
from some source other than comScore or Dunstan's antivirus software malfunctioned.
comScore requested and needs Dunstan's anti-virus logs, which Dunstan refuses to produce,

in order to defend itself and respond to the inaccurate factual allegations. Thus, in an effort
to moot the request, the Plaintiffs seek to dismiss a single count, Court IV, which is
premised upon the Illinois Consumer Fraud Act.
II.

Argument
a. Dunstan's Motion Fails To Withdraw The Factual Allegations
Underlying Count IV
Dunstan's request to voluntarily withdraw and dismiss Count IV of the class action

complaint ("the Complaint") fails to address the necessary amendment and/or removal of
certain factual allegations throughout the Complaint that relate to Dunstan's damages. In
support of Count IV, brought under the Illinois Consumer Fraud and Deceptive Practices
Act (the "ICFA"), Plaintiffs assert that Dunstan's computer was "debilitated" and that he
was "forced to spend $40 on third party software." (Compl. ¶ 118.) These allegations are
pervasive throughout the Complaint and are incorporated into the three remaining counts
(even though it is these factual allegations that are being abandoned by Plaintiffs). For
example, in paragraph 71, Plaintiffs allege, "After installation, Dunstan's firewall detected the
re-routing of his Internet traffic to comScore servers, and in response, effectively disabled
his computer from accessing the Internet. In fact, Plaintiff Dunstan's computer became
entirely debilitated in reaction to the Surveillance Software operating on his computer."
(Compl. ¶ 71.) This is untrue. However, the critical point for this opposition is that
Plaintiffs are abandoning this factual allegation, and it must be removed from the Complaint
through the filing of an amended complaint. Going further, Plaintiffs assert, "Eventually,

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Plaintiff Dunstan had to pay forty dollars ($40) for third-party anti-virus software to entirely
remove the software from his computer and restore it to a functioning state." (Compl. ¶ 73.)
Though Dunstan has moved the court to "dismiss [Count IV] and drop the
associated subclass," Plaintiffs have not sought to also withdraw the factual allegations
regarding the purported debilitation of Dunstan's computer, as they must. Indeed, the
dismissal of Count IV without amendment of the Complaint would leave intact allegations
relating to the "debilitation" of Dunstan's computer and the alleged cost of purchasing
antivirus software. For example, in Count III, which is premised upon an alleged violation
of the Computer Fraud and Abuse Act, the Plaintiffs allege, "Plaintiff Dunstan spent $40 to
purchase a spyware removal program to fully remove the program and restore his computer
to a functioning state." (Compl. ¶ 107.) Thus, even if Count IV were dismissed, Count III
and paragraph 107 would remain. These allegations of damages must be removed from the
Complaint. The most efficient mechanism for the Complaint to be modified is to require
Plaintiffs to file an amended complaint to properly (and entirely) dismiss Count IV and the
related factual allegations.
b. Dunstan's Motion Deprives comScore Of Its Ability To Respond To An
Amended Complaint
Dunstan's request to voluntarily dismiss Count IV is actually just an attempt to
deprive comScore of any opportunity to respond to an amended complaint. To circumvent
this opportunity, Plaintiffs seek to abandon Count IV while continuing to leave in the
Complaint the factual allegations related to that Count. Such allegations are not removed
from the Complaint until Plaintiffs file an amended complaint.
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An amended complaint would permit comScore to review and evaluate the revised
factual allegations. If the amended complaint substantively changes the allegations of the
remaining counts, comScore should have the opportunity to answer or otherwise respond.
Absent the filing of an amended complaint, comScore would be denied this opportunity.
c. Rule 41(a) Is Inapplicable To Dunstan's Motion
Dunstan's motion declines to set forth the Federal Rule of Civil Procedure under
which it is brought. On page 8 of his motion, Dunstan hints that perhaps Rule 41 may come
into play. Rule 41(a)(2) states that "an action may be dismissed at the plaintiff's request only
by court order . . . ." (Emphasis added). Plaintiffs do not wish to dismiss their action, they
wish to dismiss a single count. Thus, Rule 41(a)(2) is inapplicable. In Chavez v. Illinois State
Police, 1999 WL 754681 (N.D. Ill. 1999), Judge Manning correctly stated the law:
Rule 15(a) provides that, after the parties are at issue, a party may
amend its pleading 'only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires.'
. . . This definition illustrates a basic premise underlying Rule 15(a):
amendment of a complaint is worthwhile when it cures defective
allegations or red-lines legally deficient claims in the context of an ongoing lawsuit.
***
In contrast, after the parties are at issue and a plaintiff seeks to dismiss
a case, as opposed to individual claims, and all parties do not stipulate
to dismissal, Rule 41(a)(2) comes into play. That rule provides that ‘an
action shall not be dismissed at the plaintiff's insistence save upon
order of the court and upon such terms and conditions as the court
deems proper. . . . . (Emphasis added)
Similarly, in Transwitch Corp. v. Galazar Networks, Inc., 377 F.Supp.2d 284 (D. Mass.
2005), the Court stated:
By its terms, Rule 41(a)(2) applies to the dismissal of 'an action. . . .
Consequently, the weight of authority is that Rule 15(a), as opposed to
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Rule 41(a)(2), applies to an amendment which drops some but not all
of the claims in an action. Addamax Corporation v. Open Software
Foundation, Inc., 149 F.R.D. 3, 5 (D.Mass.1993) (Rule 15(a) 'is the proper
vehicle to drop some but not all claims against a defendant or
defendants'); accord Gronholz v. Sears, Roebuck and Co., 836 F.2d 515, 517518 (Fed.Cir.1987); Chavez v. Illinois State Police, 1999 WL 754681 at * 2
(N.D.Ill. Sept.9, 1999) ('focusing on the distinction between dismissing
a claim and an entire case, courts have approved the use of Rule 15(a),
rather than Rule 41(a)(2), to dismiss 'a claim, as opposed to an action');
Bragg v. Robertson, 54 F.Supp.2d 653, 660 (S.D.W.Va.1999) (Rule 15
applies when the plaintiff seeks to dismiss only some counts against the
defendant); Bibbs v. Newman, 997 F.Supp. 1174, 1177 (S.D.Ind.1998)
(parenthetically quoting treatise that 'Rule 41(a) applies only to the
dismissal *289 of all claims in an action’ whereas a ‘plaintiff who wishes
to drop some claims but not others should do so by amending his
complaint pursuant to Rule 15').
Because Plaintiffs cannot use Rule 41 as the basis for Dunstan's instant motion,
Plaintiffs should be seeking relief under Rule 15(a)(2). However, Plaintiffs are seeking to
avoid having to live with the consequences of Rule 15. (Plaintiffs' Motion at 7-8).
comScore submits that the appropriate action on Dunstan's motion is to deny it
without prejudice and to allow Plaintiffs a short period in which, under Rule 15(a)(2), to file
a motion for leave to file an amended complaint. If the Plaintiffs decline to file such a
motion, they must be prepared to proceed with their case as is, no matter how
uncomfortable it may be for them.
III.

Conclusion
For the foregoing reasons, comScore respectfully requests that the Court deny

Dunstan's motion to voluntarily dismiss Count IV of the Complaint.

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DATED: September 11, 2012

By /s/ Paul F. Stack
Paul F. Stack
[e-mail]
Mark William Wallin
[e-mail]
STACK & O'CONNOR CHARTERED
140 South Dearborn Street
Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Andrew Schapiro
Email: [e-mail]
Stephen Swedlow
Email: [e-mail]
Robyn Bowland
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
Telephone: [phone]
Facsimile: [phone]

Attorneys for Defendant comScore, Inc.

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